D2014/69, Transcript of Proceedings [2015] FWCTrans 219 (13 April 2015)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009                                       1051632

DEPUTY PRESIDENT LAWRENCE

D2014/69

s.18(a) RO Act - Application for registration by an association of employers

Application/Notification by Health Services Association of New South Wales
(D2014/69)

Sydney

1.06 PM, FRIDAY, 27 MARCH 2015

PN1

THE DEPUTY PRESIDENT: (Audio commences) So perhaps you can just tell me where you understand it’s up to.

PN2

MR McGILLICUDDY: At this particular stage we’ve agreed on the wording of the MOU, subject that now going to the HSU’s two governing bodies, which is, I think, the state branch and the federal branch, and our association’s board. I do not envisage any objections from our side to the wording, but I’m quite happy to hand up the draft copy of the memorandum.

PN3

THE DEPUTY PRESIDENT: Yes, thank you.

PN4

MR McGILLICUDDY: The unions wanted a slight amendment so we were quite happy to. That’s indicated on the memorandum, the crossed-out wording.

PN5

THE DEPUTY PRESIDENT: We’ll mark this exhibit M1, just so we know what it is.

EXHIBIT #M1 MEMORANDUM OF UNDERSTANDING

PN6

THE DEPUTY PRESIDENT: So would you like just to explain the nature of the settlement?

PN7

MR McGILLICUDDY: What we’ve agreed on is that, in the situation that the association remains a federally registered employer organisation and/or that it retains its name as the Health Services Association of New South Wales and, providing that the unions still exist, that, if any of those occur, then the MOU would cease. But if they don’t occur, then what we’ve agreed with the union is that when we’re operating in the federal system as an employer organisation then we would use our full name, the Health Services Association of New South Wales. We will not abbreviate our name to HSA or HSANSW.

PN8

The other issues that we’ve agreed on is that the association, at the earliest possible time, will pass a resolution to have removed from its category of members the personal category. They’re really the two issues that the unions had objected to and that’s our solution that we’ve put to the unions, and the unions have accepted that at this stage.

PN9

THE DEPUTY PRESIDENT: All right. Yes. I suppose it is the agreement. That’s fine. It’s very difficult to determine how an organisation is going to be referred to. You can determine how you do it yourself. As to what others say, is another question.

PN10

MR McGILLICUDDY: Yes. I think that’s a bit beyond our control at this stage, but I think the intention of this is that we would not cause the confusion. Other people may want to cause the confusion, but, for all intents and purposes, we will not be causing the confusion. We see from that perspective that we’re actually addressing the objection.

PN11

THE DEPUTY PRESIDENT: Yes. The other part of it is to explain in communications that it’s an organisation of employers as against employees.

PN12

MR McGILLICUDDY: Yes.

PN13

THE DEPUTY PRESIDENT: So what does that mean in practical terms? On a letterhead you’d have some reference down the bottom, for example, to the fact that you’re an organisation of employers from the public health system in New South Wales?

PN14

MR McGILLICUDDY: Yes, exactly. Also, in any correspondence, media releases, we would state our name, then we would say we’re the employer organisation for public health service providers in New South Wales.

PN15

THE DEPUTY PRESIDENT: Yes. So the status of this really is an agreement in principle, subject to endorsement by your governing body.

PN16

MR McGILLICUDDY: Yes.

PN17

THE DEPUTY PRESIDENT: And by the HSU’s - - -

PN18

MR McGILLICUDDY: Governing bodies.

PN19

THE DEPUTY PRESIDENT: - - - federal and state governing bodies, for want of a better term.

PN20

MR McGILLICUDDY: Federal and state.

PN21

THE DEPUTY PRESIDENT: So what’s the timetable?

PN22

MR McGILLICUDDY: Mark couldn’t indicate to me when their governing bodies would meet, but I presume that it would be within the next month.

PN23

THE DEPUTY PRESIDENT: Yes. Could I just say also, Mr McGillicuddy, since we last had the hearing I’ve consulted with the Regulation Compliance Branch with respect to their view about the rules in totality, if you like. I’m not sure whether you’ve had any further discussions with them.

PN24

MR McGILLICUDDY: No, no others have raised anything.

PN25

THE DEPUTY PRESIDENT: No. This is relatively recent – this is David Vale – they’ve given me a memo, which I’m happy to provide to you, which suggests a range of further changes to the rules essentially. Most of them are relating to various election rules by the look of it.

PN26

MR McGILLICUDDY: Okay, yes.

PN27

THE DEPUTY PRESIDENT: I’ve had a discussion with David about it. Also, I think there are a couple of deficiencies in respect of the relatively recent amendments to the RO Act with respect to financial accountability. In any event, in consultation with them, I think the best thing is for me to provide a copy of this to you. What they haven’t done is redraft the rules, as such.

PN28

MR McGILLICUDDY: Yes.

PN29

THE DEPUTY PRESIDENT: They’re suggesting that there are a range of deficiencies in the rules. I think it would be appropriate for you to get some advice on that, if need be, to ensure that the rules are amended. It’s more than welcome. In fact, I would suggest that you talk to the Regulation Compliance Branch once you’ve got some advice and/or once you’ve got draft rules. But what’s going to be required are further rule changes to address these issues. There is the ability under section 25, I think. Yes, so once an organisation has made an application, then section 25 really allows the granting of leave to the organisation on whatever terms the Commission thinks are appropriate, to change the name or alter the rules, to enable compliance with the Act or to remove some ground of objection, or to correct some error or if there was some obvious typo in the rules and then I’ve got the ability to do that and we could do that.

PN30

MR McGILLICUDDY: Yes.

PN31

THE DEPUTY PRESIDENT: But these are matters that require leave to be granted, I think, for the changes to take place. So what I would propose to do is to do that: provide a copy of this memo to you. It might be the case that you consider or you have some advice that their suggestions about compliance are not right.

PN32

MR McGILLICUDDY: Yes.

PN33

THE DEPUTY PRESIDENT: But in my experience, they’re usually pretty accurate. All they’ve done is to go through the various provisions, particularly of section 143 and 146, and identify those things that appear to be deficient, so I’ll provide that to you. You should get some advice on that, talk to them and probably in the timeframe – presumably you need to have a meeting yourself to endorse this.

PN34

MR McGILLICUDDY: Yes. The next board meeting is on 1 May. The executive committee can endorse that, but our next board meeting is on 1 May.

PN35

THE DEPUTY PRESIDENT: Just remind me what is the rule changing procedure in the rules?

PN36

MR McGILLICUDDY: That our rules need to be changed by way of extraordinary meeting of members. We also have an AGM coming up at the beginning of July, so my intention would be that, if we could look at the rule changes and agree on the amendments with the compliance committee, then we can then put that to our AGM at the beginning of July and have that voted on. The timeframe, I think we have to provide 21 days’ notice. So by the time we actually draft these, it would be back into May.

PN37

THE DEPUTY PRESIDENT: In terms of a special meeting and that sort of thing. I guess the difficulty is we’re not going to be able to endorse the registration until these things are addressed.

PN38

MR McGILLICUDDY: Yes.

PN39

THE DEPUTY PRESIDENT: All right. Subject to these things being addressed and subject to me having a dialogue with Regulations Compliance Branch, I wouldn’t see any need for us to having another hearing about those matters, I don’t think, or about the settlement, for that matter.

PN40

MR McGILLICUDDY: Would you consider that if we were able to – I would actually want to try to get all the amendments approved by our AGM in July at the latest, if not - if we can get an earlier. Then we’ll provide the Commission with an amended copy of the rules. We would file that with the Commission. That’s what the Commission would like?

PN41

THE DEPUTY PRESIDENT: Yes. Well, what you need to do is to satisfy the Regulation Compliance Branch that you’ve met these concerns.

PN42

MR McGILLICUDDY: Yes.

PN43

THE DEPUTY PRESIDENT: I’ll talk to them about that, provide a consolidated copy of the rules and an analysis of where the changes are from them.

PN44

MR McGILLICUDDY: Yes.

PN45

THE DEPUTY PRESIDENT: So I think probably two documents: one is a clean copy of the rules and a copy which indicates the changes and an explanation as to the extent to which they’ve met the concerns in this memo and provide that to me. Of course, also, the signed copies of the deed - memorandum of understanding.

PN46

MR McGILLICUDDY: Yes, memorandum of understanding.

PN47

THE DEPUTY PRESIDENT: If we’ve got all that then I can do a decision indicating compliance with the Act I think. So hopefully that would be done some time in July, hopefully.

PN48

MR McGILLICUDDY: Yes.

PN49

THE DEPUTY PRESIDENT: All right. Why don’t we just summarise, just for the record. So I’ve received a copy of the draft memorandum of understanding between the applicant and the Health Services Union and Health Services Union New South Wales. It would appear that it is the subject of in-principle agreement, so Mr McGillicuddy has indicated and undertaken to provide copies of the executed document once the memorandum of understanding has been endorsed by the respective governing bodies. That’s the first issue.

PN50

Secondly, the Commission will provide to Mr McGillicuddy an analysis of the issues within the rules that, in the view of the Regulation Compliance Branch, there needs to be or there should be amendments so that the rules comply with the Act. Mr McGillicuddy has undertaken to consider those and to prepare, in consultation with the Regulation Compliance Branch, draft amendments to the rules for endorsement by a meeting of members, in accordance with the rules. Once that is done, then a consolidated copy of the rules and a document identifying the amendments will be submitted to the Commission.

PN51

I can indicate that I will now grant leave to the association, to the applicant, to change its rules, in accordance with section 25 of the Registered Organisations Act for the purposes of ensuring that they comply with the Act. That will be the subject of consultation with the Regulation Compliance Branch, so hopefully once the consolidated copy of the rules is provided and it is clear that they conform with the Act and we have the memorandum of understanding, then I can issue a decision endorsing the registration of the organisation.

PN52

So I think, unless there is anything else - - -

PN53

MR McGILLICUDDY: Just one other question: the best contact person in the regulation review?

PN54

THE DEPUTY PRESIDENT: David Vale.

PN55

MR McGILLICUDDY: David Vale, okay.

PN56

THE DEPUTY PRESIDENT: David Vale, and you’ll see from this memo that he’s the person who is in charge of the area in New South Wales and he’s the person who has done the analysis and he’s the one that I’ve spoken to. If there’s any issue about that I will talk to him about it and we’ll work it through.

PN57

MR McGILLICUDDY: Yes.

PN58

THE DEPUTY PRESIDENT: All right. On that basis, we will adjourn. My associate will give you a copy of this memo perhaps to take with you. Okay. Thanks.

ADJOURNED INDEFINITELY                                                           [1.23 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #M1 MEMORANDUM OF UNDERSTANDING.............................. PN5